Lawyers know—or should know—that they may not communicate with an adversary’s client about the subject of the representation without the other lawyer’s consent. See La. Rules of Prof’l Conduct, r. 4.2. This rule applies to traditional forms of communication such as in person communications, telephone calls, and emails. The expansion of social media, however, has changed how many people communicate. For example, people are now “friends” with people they have never even met. In the age of social media, is “friending” a complete stranger—who happens to be your adversary’s client— innocent online activity or is “friending” enough to constitute communication with that adversary’s client?
According to a recent opinion from the New Jersey Supreme Court, messaging and “friending” an opponent’s client is prohibited under the rules of professional conduct unless the lawyer obtains the adversary lawyer’s consent. See In the Matter of John J. Robertelli, No. 084373, D-126-19 (NJ Sept. 21, 2021). In 2007, a lawyer Robertelli, who represented the defendant in a personal injury suit, requested that his paralegal conduct internet research into the plaintiff’s academic and employment background and any criminal history. As part of that research, the paralegal located the plaintiff on Facebook, sent the plaintiff a message which, in turn, prompted the plaintiff to send the paralegal a “friend request.” The paralegal then had access to peruse the plaintiff’s private Facebook page. But the paralegal did not disclose to the plaintiff that she worked for the lawyer who represented the party the plaintiff had sued. And, neither the lawyer nor the paralegal obtained the consent of opposing counsel. As a result, the Office of Attorney Ethics brought disciplinary charges against the lawyer for violating the rules of professional conduct.
According to the court:
When represented Facebook users fix their privacy settings to restrict information to “friends,” lawyers cannot attempt to communicate with them to gain access to that information, without the consent of the user’s counsel. Both sending a “friend” request and enticing or cajoling the represented client to send one are prohibited forms of conduct under RPC 4.2, as other jurisdictions have determined under their own rules of court.
Id. at 3.
The court’s opinion is consistent with other jurisdictions to have considered the issue. See, e.g., N.Y. Bar Ass’n, Com. & Fed. Litig. Section, No. 4.C (“A lawyer shall not contact a represented party or request access to review the non-public portion of a represented party’s social media profile unless express consent has been furnished by the represented party’s counsel.”); N.C. Formal Ethics Op. 2018-5 (“[R]equesting access to the restricted portions of a represented person’s social network presence is prohibited [by the equivalent of RPC 4.2] unless the lawyer obtains consent from the person’s lawyer.”); Me. Ethics Op. 217 (“[A]n attorney may not directly or indirectly access or use private portions of a represented party’s social media, because the efforts to access and use the private information . . . are prohibited ‘communications’ with a represented party . . . .”); D.C. Ethics Op. 371 (2016) (“[R]equesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person, does constitute a communication that is covered by the [equivalent of RPC 4.2].”); Or. Formal Ethics Op. 2013-189 (Rev. 2016) (stating that lawyers may not request access to the social media of a represented party without the consent of the party’s counsel); Colo. Formal Ethics Op. 127 (2015) (“[A] lawyer may not request permission to view a restricted portion of a social media profile or website of a person the lawyer knows to be represented by another lawyer in that matter, without obtaining consent from that counsel.”); W. Va. Ethics Op. 2015-02, at 10-11 (2015) (“[A]ttorneys may not contact a represented person through social media . . . nor may attorneys send a ‘friend request’ to represented persons.”).
The expansion of social media over the last decade has placed a treasure trove of information about litigants right at the fingertips of lawyers. Lawyers no longer must rely on private investigators or high-tech surveillance to learn the intimate details of the life of an adversary’s client. Rather, people post the private details of their life publicly on social media for all to see. But, when the represented party’s account is set on private, lawyers must refrain from “friending” that party unless they obtain the consent of opposing counsel. Absent such consent, the lawyer will be communicating with a represented person in violation of the Rules of Professional Conduct.